Brown v. Rivard

Filing 11

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Petitioner Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Ervin Brown,
Petitioner,
v.

Case No. 14-cv-14771
Hon. Judith E. Levy
Mag. Judge Elizabeth A. Stafford

Steven Rivard,
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING PETITIONER LEAVE TO
APPEAL IN FORMA PAUPERIS
Petitioner Ervin Brown, confined at the Muskegon Correctional
Facility in Muskegon, Michigan, filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
convictions

of

first-degree

home

Petitioner challenges his

invasion,

Mich.

Comp.

Laws

§ 750.110a(2), conspiracy to commit first-degree home invasion, Mich.
Comp. Laws § 750.157a, unlawful imprisonment, Mich. Comp. Laws
§ 750.349b, five counts of possession of a firearm during the commission
of a felony, Mich. Comp. Laws § 750.227b, and being a third-offense

habitual offender, Mich. Comp. Laws § 769.11.

For the reasons set

forth below, the petition is denied.
I.

Background
Petitioner was convicted following a jury trial in the Saginaw

County Circuit Court.

The relevant facts regarding Petitioner’s

conviction are cited verbatim from the Michigan Court of Appeals’
opinion affirming Petitioner’s conviction, because they are presumed
correct on habeas review. 28 U.S.C. § 2254(e)(1); see Wagner v. Smith,
581 F. 3d 410, 413 (6th Cir. 2009).
On January 13, 2011, defendant gave Porter Smith a ride to
the victims’ home. Smith identified the female victim as an
ex-girlfriend and told defendant that he expected her to give
him some money to fix his truck. Defendant suspected that
Smith intended to force her to give him the money. When
they arrived at the home, Smith entered wearing a ski mask
and found the female victim in the bedroom with her
husband. Smith threatened to shoot them unless they
turned over their money and valuables and ordered the
victims to strip. When the female victim did not respond,
defendant and Smith removed her clothes. They had both
victims lie on the floor while they searched the home.
Defendant and Smith fled the residence after completing the
robbery, and were apprehended by the police shortly after
leaving. The police subsequently recovered Smith’s ski-mask
and handgun from a nearby alley. Defendant was convicted
as previously stated, and this appeal ensued.
2

People v. Brown, No. 310818, 2013 Mich. App. LEXIS 1619, at *1-2
(Mich. Ct. App. Oct. 15, 2013).
Petitioner’s conviction was affirmed by the Michigan Court of
Appeals, see id. at *7, and the Michigan Supreme Court denied
Petitioner’s application for leave to appeal the judgment of the Court of
Appeals. See People v. Brown, 843 N.W.2d 502, 502 (Mich. 2014). At
issue is Petitioner’s writ of habeas corpus, in which Petitioner argues
that there was insufficient evidence to convict him of possession of a
firearm during the commission of a felony (“felony firearm”), the trial
court erred in scoring Offense Variable (“OV”) 7 during sentencing, he
was denied effective assistance of counsel when his counsel failed to
properly object to the trial court’s scoring of OV 7, and the trial court
erred in denying his motion for resentencing.
II.

Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can
order habeas relief only if the state’s adjudication of a claim (1) resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
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Supreme Court of the United States, or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).
In applying these standards, this Court is to examine the holdings of
the Supreme Court as they existed at “the time of the relevant statecourt decision.”

Williams v. Taylor, 529 U.S. 362, 412 (2000).

The

Court can, however, look to decisions of other courts to determine
whether a legal principle has been clearly established by the Supreme
Court. Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009); Smith v.
Stegall, 385 F.3d 993, 998 (6th Cir. 2004).

“A state court’s

determination that a claim lacks merit precludes federal habeas relief
so long as ‘fair minded jurists could disagree’ on the correctness of that
decision.”

Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
III.

Analysis
a. Sufficiency of the evidence claim
Petitioner argues that there was insufficient evidence to support

his felony-firearm convictions.

(See Dkt. 1 at 21-24.)

Petitioner

acknowledges that Ms. Thomas, the female victim, testified at trial that
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Petitioner was armed with a firearm. (Id. at 22.) But he argues that no
rational juror could have found beyond a reasonable doubt that he
“actually possessed a gun,” because Ms. Thomas’ testimony was
equivocal, specifically because she testified that she was “almost sure”
that Petitioner had a firearm before she testified that she was “certain.”
(Id.)

Petitioner also notes that Ms. Thomas previously stated at

Petitioner’s preliminary examination that she was not sure that
Petitioner possessed a firearm during the incident. (Id.; see Dkt. 10-3 at
33 (“Q Did you see him with anything? A I’m not sure. I--I can’t be a
hundred percent sure.”).) And Petitioner notes that although he was
arrested almost immediately after fleeing the victims’ home, the police
were only able to recover the firearm used by his co-defendant when
they searched the relevant area. (Dkt. 1 at 22.)
The critical inquiry is “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318 (1979). This does not require a
court to “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Id. at 318-19 (quoting
Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 282
5

(1966)) (emphasis in original).

Instead, the relevant question is

whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319 (internal
citation and footnote omitted) (emphasis in the original).
Put differently, “the only question under Jackson is whether that
finding was so insupportable as to fall below the threshold of bare
rationality,” and the state court’s decision on this question “is entitled
to considerable deference under AEDPA.” Coleman v. Johnson, 132 S.
Ct. 2060, 2065 (2012). Under the AEDPA standard, a federal habeas
court may not overturn a state court decision that rejects a sufficiency
of the evidence claim unless the state court decision was an objectively
unreasonable application of the Jackson standard.

See Cavazos v.

Smith, 132 S. Ct. 2, 4 (2011). And relevant here, a federal habeas court
has “no license to redetermine credibility of witnesses.” Marshall v.
Lonberger, 459 U.S. 422, 434 (1983).

“It is the province of the

factfinder, here the state trial court, to weigh the probative value of the
evidence and resolve any conflicts in the testimony.” Neal v. Morris,
972 F.2d 675, 679 (6th Cir. 1992). The “mere existence of sufficient
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evidence to convict therefore defeats a petitioner’s claim.” Matthews v.
Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003).
Under Michigan law, “[t]he elements of felony-firearm are that
[defendant] possessed a firearm while committing, or while attempting
to commit, a felony offense.” Parker v. Renico, 506 F.3d 444, 448 (6th
Cir. 2007) (citing Mich. Comp. Laws § 750.227b). Petitioner makes the
same insufficiency of the evidence argument here that he made to the
Michigan Court of Appeals.

See People v. Brown, 2013 Mich. App.

LEXIS 1619, at *2-3. The Michigan court considered and rejected his
claim:
The female victim testified at trial that defendant was
armed during the home invasion. Viewing the evidence in
the light most favorable to the prosecution, we conclude that
the eyewitness account of the victim, who had extended time
to observe defendant, is sufficient to support a reasonable
finding that defendant was armed during the home invasion.
Moreover, when the female victim’s testimony is considered
in context, it is clear that any equivocation she may have
had was retracted. Moreover, it was the role of the jury to
determine whether the victim’s testimony that defendant
was armed was credible.
Finally, defendant had an
opportunity, however brief, to discard the weapon in the
time between the commission of the home invasion and
defendant’s subsequent apprehension.
Accordingly,
defendant’s felony-firearm convictions were sufficiently
supported by the evidence.
7

Id. at *3-4.
Under AEDPA and the Jackson standard, there was sufficient
evidence from which a rational trier of fact could conclude that
Petitioner possessed a firearm during the commission of the various
felony offenses. Ms. Thomas testified at trial that she was certain that
Petitioner was armed with a firearm during the home invasion and
robbery. (Dkt. 10-9 at 31 (“Q Now, did you notice a weapon in Mr.
Brown’s hand? A Yes, I did. Q And are you certain of that? A Yes, I
am.”).) The victim’s testimony is itself sufficient to support Petitioner’s
felony-firearm convictions. See, e.g., Hudson v. Lafler, 421 F. App’x 619,
626 (6th Cir. 2011); Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008)
(“[T]his Court has long held that the testimony of the victim alone is
constitutionally sufficient to sustain a conviction.”).

And as noted

above, a federal habeas court cannot consider Petitioner’s argument
that Ms. Thomas’ testimony was equivocal. Marshall, 459 U.S. at 434
(“[F]ederal habeas courts [have] no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court,
but not by them.”). Such an attack “simply challenges [] the quality of
the government’s evidence and not [] the sufficiency of the evidence.”
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Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002) (quoting United
States v. Adamo, 742 F.2d 927, 935 (6th Cir.1984)).

But the “mere

existence of sufficient evidence to convict defeats a petitioner’s claim.”
Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000).
Insofar as Petitioner argues that the verdict was against the great
weight of evidence, federal courts have no power to grant habeas relief
on this basis “unless the record is so devoid of evidentiary support that
a due process issue is raised,” because such a claim “is not of
constitutional dimension.” Cukaj v. Warren, 305 F. Supp. 2d 789, 796
(E.D. Mich. 2004) (citing Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir.
1985); Crenshaw v. Renico, 261 F. Supp. 2d 826, 834 (E.D. Mich.
2003); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich.
2002); Griggs v. State of Kansas, 814 F. Supp. 60, 62 (D. Kan. 1993)).
“The test for habeas relief is not whether the verdict was against the
great weight of the evidence, but whether there was any evidence to
support it.”

Dell, 194 F. Supp. 2d at 648.

Because the Court has

already found that there was sufficient evidence to support Petitioner’s
convictions, habeas relief cannot be granted even if the verdict went

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against the great weight of the evidence. Id. The Court thus cannot
grant habeas relief on this claim.1
b. OV 7 scoring and denial of motion for resentencing
claims
In his second claim, Petitioner contends that the trial judge erred
in scoring fifty points under OV 7 of the Michigan Sentencing
Guidelines, (Dkt. 1 at 25-28), which relates to aggravated physical
abuse. See Mich. Comp. Laws § 777.37. In his related fourth claim,
Petitioner argues that the trial judge erred in denying his postjudgment motion for resentencing, in which Petitioner made the same
arguments. (Dkt. 1 at 13-16.) Under the guidelines, a defendant is
scored fifty points when a “victim was treated with sadism, torture, or
excessive brutality or conduct designed to substantially increase the
fear and anxiety a victim suffered during the offense.”

Id.

§ 777.37(1)(a); see also People v. Hardy, 835 N.W.2d 340, 345 (Mich.
2013).

Because there was sufficient evidence for the jury to find beyond a reasonable
doubt that Petitioner possessed a firearm during the commission of a felony, there
is no need to address Petitioner’s argument that there was insufficient evidence to
support his felony-firearm convictions under an aiding-and-abetting theory. (See
Dkt. 1 at 23-24.)
1

10

Federal habeas courts afford state courts “wide discretion” for
sentencing decisions. Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D.
Mich. 2002).

Thus claims that arise out of a state trial court’s

sentencing decision “are not generally cognizable upon federal habeas
review, unless the petitioner can show that the sentence imposed
exceeded the statutory limits or is wholly unauthorized by law.” Id.
When a petitioner “alleges only errors of state sentencing law, his
claims are not cognizable on habeas review.” Id.; see Cook v. Stegall, 56
F. Supp. 2d 788, 797 (E.D. Mich. 1999) (“[A] sentence imposed within
the statutory limits . . . is not generally subject to appellate review.”).
Petitioner argues that “the trial court erred in its application of
the guidelines.” (Dkt. 1 at 25-28.) But the Michigan Court of Appeals
addressed the same argument and denied relief:
In this case, the record shows that defendant assisted in
stripping the female victim during the home invasion. The
record also shows that defendant touched the female victim
while stripping her, and that she felt humiliated as a
result. . . . [G]iven the gratuitous and humiliating nature of
this behavior by defendant, a finding that defendant
subjected the female victim to extreme or prolonged pain or
humiliation, and that he did so for the purpose of his own
gratification, was supported by the record.

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Defendant argues that there was no evidence that he
intended to humiliate the victims for his own gratification;
however, we conclude that this intent can be inferred from
defendant’s conduct. Defendant also argues that physically
stripping the female victim and forcing her to lie on the floor
in such a state was not “extreme or prolonged” humiliation.
Given the sex of the defendant and the victim, as well as the
nature and duration of the offending behavior, such an
argument is not supported by the record. Accordingly, the
trial court did not err by declining to adjust the score of 50
points for OV 7.
People v. Brown, 2013 Mich. App. LEXIS 1619, at *5-6.
Petitioner’s challenge to the trial court’s scoring is based on state
law, and thus habeas relief cannot be granted. “A state court’s alleged
misinterpretation of state sentencing guidelines and crediting statutes
is a matter of state concern only.” Howard v. White, 76 F. App’x 52, 53
(6th Cir. 2003).

And “[f]ederal habeas corpus relief does not lie for

errors of state law.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67
(1991)).

Even if the state court erred when calculating Petitioner’s

score under the state sentencing guidelines, habeas relief could not be
granted. Thus Petitioner is not entitled to habeas relief on either his
second or fourth claim.

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c. Ineffective assistance of counsel claim
Petitioner

argues

that

trial

counsel

was

constitutionally

ineffective for failing to object at his original sentencing to the fiftypoint score under OV 7. (Dkt. 1 at 29-31.) The Michigan Court of
Appeals addressed and denied this same claim on the merits:
Defendant has failed to demonstrate that he received
ineffective assistance of counsel because . . . the trial court
did not err by scoring 50 points for OV 7, and defense
counsel is not required to make futile objections. [People v.
Milstead, 648 N.W.2d 648 (Mich. Ct. App. 2002)]. Moreover,
this Court granted defendant a remand for the purpose of
filing a motion for resentencing, . . . which defendant filed.
The trial court denied defendant’s motion, issuing a written
opinion specifically finding that defendant physically
assisted in stripping the female victim and that his actions
inflicted extreme or prolonged humiliation for his own
gratification. Thus, it is clear that defense counsel’s failure
to object did not affect the outcome of the proceedings.
People v. Brown, 2013 Mich. App. LEXIS 1619, at *7.
To establish a constitutional violation due to ineffective
assistance of counsel, a defendant must show that “counsel’s
performance was deficient,” and that the “deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To show prejudice, a defendant must prove that “there is a
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reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See id. at 694.
Relevant here, “ineffective assistance of counsel during a sentencing
hearing can result in Strickland prejudice because ‘any amount of
[additional] jail time has Sixth Amendment significance.’”

Lafler v.

Cooper, 132 S. Ct. 1376, 1386 (2012) (quoting Glover v. United States,
531 U.S. 198, 203 (2001)).

Because the Michigan Court of Appeals

already reached the merits of this same claim, Petitioner “must do more
than show that he would have satisfied Strickland’s test if his claim
were being analyzed in the first instance.” See Bell v. Cone, 535 U.S.
685, 698-99 (2002). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.” Harrington
v. Richter, 562 U.S. 86, 101 (2011).
Petitioner is unable to establish the second prong, because, as set
forth above, the trial court actually considered the issue on remand and
found that the scoring of OV 7 at sentencing was correct. If “one is left
with pure speculation on whether the outcome of the trial or the penalty
phase could have been any different,” there is “an insufficient basis for a
successful claim of prejudice.” Baze v. Parker, 371 F. 3d 310, 322 (6th
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Cir. 2004). Because Petitioner has not established that the state trial
court judge would have imposed a lesser sentence had the judge
considered an objection at the time of sentencing, Petitioner fails to
show that he was prejudiced. See Spencer v. Booker, 254 F. App’x 520,
525-26 (6th Cir. 2007). Moreover, even if the Court disagreed with the
Michigan Court of Appeals, that court’s application of Strickland was
not unreasonable. Thus Petitioner is not entitled to relief on his third
claim.
IV.

Conclusion
For the reasons set forth above, the petition for writ of habeas

corpus is denied.
In order to obtain a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).

Under this standard, a petitioner must

demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
15

This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). In this case, reasonable jurists would not debate that
the petition should have been resolved in a different manner. Thus the
Court denies a certificate of appealability.
A court may grant in forma pauperis status if the court finds that
an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). “‘Good faith’ merely
requires showing that the issues are arguable on the merits; it does not
require a showing of probable success.” Id. at 765. An appeal here
could not be taken in good faith because Petitioner fails to raise any
claim that is arguable on the merits under the AEDPA standard of
review.

The Court therefore declines to grant Petitioner leave to

proceed in forma pauperis.
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For the foregoing reasons, the Court denies the petition for a writ
of habeas corpus, denies a certificate of appealability, and denies leave
to proceed in forma pauperis.
IT IS SO ORDERED.
Dated: January 29, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 29, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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